[News] [USA] Appeals Courts Issue New LGBT-Related Rulings

[Stephanie Stevens]

Art Leonard Observations, NY, USA


Appeals Courts Issue New LGBT-Related Rulings

Posted on: April 26th, 2017 by Art Leonard


Several appellate courts have issued significant LGBT-related rulings in recent days. Here is a brief summary of the new developments.

>snip<

2nd Circuit Panels Follow Christiansen Precedent in Title VII Sexual Orientation Cases

On March 27, a three-judge panel of the New York-based 2nd Circuit Court of Appeals released a ruling in Christiansen v. Omnicom Group, holding that prior 2nd Circuit decisions blocked any reconsideration by the panel of the question whether sexual orientation discrimination claims can be litigated under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of sex.  In an unusual move, two of the judges on the panel concurred in an opinion virtually accepting the argument that the circuit should reconsider and change its position on this question if presented with a petition for rehearing before the full bench of the circuit.

The 2nd Circuit has eleven active judges, of whom seven were appointed by Presidents Clinton or Obama, the rest by Republican presidents, holding out hope that an en banc review could lead to a favorable circuit precedent.  Although the panel ruled against Matthew Christiansen’s appeal on the sexual orientation question, it sent the case back to the district court to consider his claim of gender-stereotyping, which the Circuit may allow under the rubric of sex discrimination.

Since then, two different three-judge panels of the 2nd Circuit have issued decisions in other cases presenting the same question: whether sexual orientation discrimination claims are covered by Title VII.  In both cases, the courts found themselves bound by Christiansen and the prior precedents to reject a sexual orientation discrimination claim.

On April 18, a panel ruled in Zarda v. Altitude Express, per curiam, that it was bound by circuit precedent to uphold the trial court’s dismissal of a sexual orientation discrimination claim.   The case involved a gay male skydiver and instructor, since deceased, who was in no way gender-nonconforming – other than his failure to conform with the stereotype that men should be sexually attracted only to women, which the 2nd Circuit does not now recognize as the kind of stereotype that can give rise to a sex discrimination claim.

On April 25, a different panel ruled in Daniel v. T&M Protection Resources, a hostile environment case, that the district court correctly allowed Otis Daniel to maintain his sex discrimination claim, because the court found that the verbal harassment to which Daniel was subjected by his male supervisor could support a gender stereotyping claim. His supervisor “frequently called him ‘homo’ and told him to ‘Man up, be a man.”  The court pointedly observed that the case could not be litigated as a sexual orientation discrimination case because of prior 2nd Circuit rulings, including Zarda and Christiansen.

Attorneys for Christiansen (Susan Lask) and for Zarda’s estate executors (Gregory Antollino) have both indicated that they are filing petitions for en banc rehearing before the full 2nd Circuit.

In addition, Lambda Legal filed a petition on March 31 with the Atlanta-based 11th Circuit Court of Appeals seeking an en banc rehearing in Evans v. Georgia Regional Hospital, in which a three-judge panel voted 2-1 on March 10 to reject a sexual orientation discrimination claim under Title VII.  The panel sent the case back to a trial judge for possible litigation under a gender stereotyping theory.  Eight of the eleven active judges on the 11th Circuit are appointees of Clinton or Obama.

The 2nd and 11th Circuits both had many vacancies filled during President Obama’s first term, tipping the ideological balance of both circuits in a much more liberal direction, leaving hope that they might follow the lead of the Chicago-based 11th Circuit, which on April 4 became the first federal appeals court to ruled that sexual orientation claims are covered by Title VII, in a case brought by lesbian college instructor Kimberly Hively, represented before the appeals court by Lambda Legal.  The issue might be brought to the Supreme Court by a disappointed plaintiff or employer, depending how the courts rule on these continuing appeals.


http://www.artleonardobservations.com/appeals-courts-issue-new-lgbt-related-rulings/